and Submitted April 16, 2019 San Francisco, California
from the United States District Court for the Northern
District of California D.C. No. 3:17-cv-05369-VC Vince
Chhabria, District Judge, Presiding
B. Baron (argued) and Lawrence A. Organ, California Civil
Rights Law Group, San Anselmo, California, for
Danielle L. Ochs (argued) and Roshni Chaudhari, Ogletree
Deakins Nash Smoak & Stewart P.C., San Francisco,
California, for Defendant-Appellee.
Before: SIDNEY R. THOMAS, Chief Judge, MILAN D. SMITH, JR.,
Circuit Judge, and KATHRYN H. VRATIL, [*] District Judge.
Discrimination / Arbitration
the district court's order compelling arbitration, the
panel held that racial discrimination claims under 42 U.S.C.
§ 1981 may be subjected to compulsory arbitration.
the reasoning of EEOC v. Luce, Forward, Hamilton &
Scripps, 345 F.3d 742 (9th Cir. 2003) (en banc),
addressing the arbitrability of Title VII claims, the panel
held that § 1981 claims are arbitrable. Applying the
Gilmer test, Luce, Forward concluded that
§ 118 of the Civil Rights Act of 1991, amending both
Title VII and § 1981, does not bar arbitration.
Chief Judge Thomas agreed that Luce, Forward was
dispositive but wrote separately because he believes that
Luce, Forward was wrongly decided. Chief Judge
Thomas wrote that the statutory text of § 118, stating
that arbitration should be encouraged to the extent it is
appropriate and authorized by law, is ambiguous. Considering
the legislative history, compelling arbitration in §
1981 actions defies Congress's intent.
SMITH, CIRCUIT JUDGE
DeWitt Lambert filed suit against Defendant-Appellee Tesla,
Inc. (Tesla), alleging violations of 42 U.S.C. § 1981.
Tesla moved to compel arbitration, and the district court
granted the motion. Lambert appealed, arguing that §
1981 claims cannot be subjected to compulsory arbitration.
Following the reasoning of our en banc decision in EEOC
v. Luce, Forward, Hamilton & Scripps, 345 F.3d 742
(9th Cir. 2003) (en banc), we hold that § 1981 claims
AND PROCEDURAL BACKGROUND
complaint, Lambert alleged that he began working as a
production associate in Tesla's Fremont, California
factory in 2015. His employment contract included an
arbitration provision that "purport[ed] to require the
parties to arbitrate disputes arising between them."
his employment, Lambert, an African American, claimed that
"the other employees consistently harassed him" due
to his race. This abuse took various forms, from petty and
puerile harassment (employees would stick Lambert's tools
to a table with adhesive tape and take photos with his phone
without permission) to vicious and vituperative comments.
Lambert's appeals to Tesla's human resources
department were unavailing, and he further alleged that the
company "discriminated against and retaliated
against" him and "refus[ed] to promote [him]
because of his race."
filed suit against Tesla in the district court, alleging
violations of 42 U.S.C. § 1981. He also sought a
declaration that his § 1981 claim was nonarbitrable.
Tesla moved the district court to either dismiss
Lambert's action or compel arbitration. The court
concluded that our precedent permitted the arbitrability of
§ 1981 claims, and granted Tesla's motion to compel
arbitration. Lambert v. Tesla, Inc., No.
17-cv-05369-VC, 2018 WL 317793, at *1 (N.D. Cal. Jan. 8,
2018). This timely appeal followed.
OF REVIEW AND JURISDICTION
review de novo the district court's order compelling
arbitration." Harden v. Roadway Package Sys.,
Inc., 249 F.3d 1137, 1140 (9th Cir. 2001). We have
jurisdiction pursuant to ...